United States v. Rosenau
870 F. Supp. 2d 1109
W.D. Wash.2012Background
- Rosenau, a Canadian citizen, is tried in W.D. Washington on a conspiracy to smuggle marijuana by helicopter (2004–2005).
- Whelpley, a Canadian citizen and alleged co-conspirator, pleaded guilty in 2008 and agreed to testify in Rosenau’s case.
- Rosenau obtained a Canadian default judgment preventing Whelpley from entering the United States; Canadian actions impede in-person testimony.
- The Government sought to depose Whelpley in Canada under Rule 15; the Court ultimately ordered live two-way video testimony from Canada to preserve confrontation rights.
- The arrangement requires cross-examination in Canada, U.S. oath, and video visibility to jurors; the Court found public policy and reliability justify the method.
- Defendant moved for reconsideration; the Court denied, reaffirming that live video testimony is constitutional under the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation satisfied by two-way video under Craig | Whelpley’s testimony is necessary for public policy. | Craig’s framework may not justify video in this context. | Yes; Craig satisfied; video permitted. |
| Appropriate standard governing video testimony | Rule 15 exceptional circumstances support video. | Craig governs, not Rule 15. | Craig standard applies; video allowed. |
| Crawford vs. Craig interaction | Craig remains valid; Crawford does not overrule it. | Crawford overrules Craig sub silentio. | Craig remains controlling source; Crawford did not overrule. |
| Public policy and reliability justification | Important policy: cross-border narcotics cases merit video testimony. | Policy considerations do not warrant bypassing confrontation. | Policy weight and reliability justify live video. |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (1990) (face-to-face preference yields to important public policy and reliability)
- United States v. Ali, 528 F.3d 210 (4th Cir. 2008) (public policy and necessity may justify video testimony in sensitive cases)
- United States v. Yates, 438 F.3d 1307 (11th Cir.2006) (policy must go beyond mere convenience; necessity required)
- United States v. Medjuck, 156 F.3d 916 (9th Cir.1998) (deposition with active defendant participation can be allowed when physical presence is impossible)
- United States v. McKeeve, 131 F.3d 1 (1st Cir.1997) (policy allowing active participation in video proceedings)
- United States v. Gifford, 892 F.2d 263 (3d Cir.1989) (implies acknowledgment of alternative confrontation modes)